ORDER :

1. Pleadings are complete. With the consent of learned counsel for the parties, the matter is finally heard.

2. The petitioner has filed this petition under Article 226 of the Constitution of India, questioning the legality, validity and propriety of the order dated 22-2-2023 (Annexure P/11) passed by the Sub Divisional Officer, Tendukheda, District Damoh-Election Tribunal whereby the election petition filed by the respondent No. 2 under section 122 of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the Adhiniyam, 1993) challenging the election of the petitioner to the post of Sarpanch of Gram Panchayat Pondi Mangarh, Tehsil Jabera, District Damoh has been partly allowed and the election tribunal has ordered for recounting of votes of polling booth No. 211.

3. To resolve the controversy involved in the case, the facts of the case in nutshell are as follows:

3.1 That, the election programme for Gram Panchayat for the year 2022-23 was notified. The petitioner along with respondent Nos. 2 and 3 contested the Panchayat election for the post of Sarpanch for Gram Panchayat Pondi Mangarh, Tehsil Jabera, District Damoh. On 1-7-2022, the result was declared wherein the petitioner was declared to be a return candidate in the said election by securing two votes more than that of respondent No. 2.

3.2 That, on 25-7-2022, respondent No. 2 filed an election petition under section 122 of Adhiniyam, 1993 claiming recounting of votes and declaring the election void. Several allegations about irregularities during the election process including the allegation of corrupt practice were also pleaded. On 21-9-2022, the matter was fixed for framing the issues and the next date was fixed as 12-10-2022 but on the said date, issues were not framed and then again the case was fixed for recording the evidence. On 22-2-2023, election petition was partly allowed only on the ground that there is thin margin of two votes between the successful candidates and the election petitioner.

3.3 Petitioner filed writ petition being W.P. No. 5465 of 2023 challenging the order passed by the Election Tribunal and the petition got disposed of vide order dated 15-3-2023 quashing the order dated 22-2-2023, remitting the matter to the Election Tribunal to pass a fresh order by assigning reasons.

3.4 That, on 27-3-2023, writ appeal being W.A. No. 451 of 2023 was preferred assailing the order of the writ Court dated 15-3-2023 with limited prayer for grant of opportunity of hearing. The said writ appeal was dismissed vide order dated 19-4-2023 with an observation that no illegality has been committed by the writ Court.

3.5 That on 28-4-2023, impugned order was passed directing recounting of votes on 8-5-2023.

3.6 That, on 2-5-2023, the present writ petition has been filed and the writ Court vide order dated 8-5-2023 granted interim relief that recounting of votes may be conducted but the result of recounting shall not be declared without seeking leave of this Court and the said result shall be subjected to final outcome of the present petition.

4. As per counsel for the petitioner, the election petition did not contain specific pleading and according to him, in Paras 9 and 10 of the election petition, there was no specific pleading made. Shri Upadhyay has also submitted that evidence led by the respondent Nos. 2 and 3 were contrary to pleading and in fact they were based on hearsay evidence and also on surmises. He has submitted that in the affidavit filed along with the election petition, it is stated that whatever averments made therein are based upon personal knowledge of election petitioner. However, the number of improperly rejected votes for polling booth number 211 has been reduced from 18 votes to 10-15 votes in evidence. PW-1 (election petitioner) has admitted that he was not present in the polling booth and information with regard to rejection of 10-15 votes was conveyed to him by his counting agent. The counting agent Chandras